McCowan v. Morales

• Decision Date: 27 December 2019
• Docket Number: No. 18-2169,18-2169
• Citation: 945 F.3d 1276
• Parties: Warren MCCOWAN, Plaintiff - Appellee, v. Mark MORALES, Defendant - Appellant, and The City of Las Cruces, New Mexico, a/k/a Las Cruces Police Department, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

945 F.3d 1276

Warren MCCOWAN, Plaintiff - Appellee,

v. Mark MORALES, Defendant - Appellant,andThe City of Las Cruces, New Mexico, a/k/a Las Cruces Police Department, Defendant.

No. 18-2169

United States Court of Appeals, Tenth Circuit.

FILED December 27, 2019

Mark D. Standridge, City of Las Cruces (Cody R. Rogers, Jarmie & Rogers, P.C., with him on the briefs), Las Cruces, New Mexico, for Defendant-Appellant Mark Morales.

Daisy Chaparro (James D. Tawney with her on the brief), Flores, Tawney & Acosta P.C., Las Cruces, New Mexico, for Plaintiff-Appellee Warren McCowan.

Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

In this interlocutory appeal, Defendant Mark Moralez,¹ a Las Cruces, New Mexico police officer, challenges the district court’s decision to deny him summary judgment on the basis of qualified immunity from two of Plaintiff Warren McCowan’s 42 U.S.C. § 1983 claims. Those claims alleged that the officer (1) used excessive force against McCowan while driving him to the police station after having arrested him for drunk driving, and (2) was deliberately indifferent to McCowan’s serious medical needs—his injured shoulders—while at the police station, before transporting McCowan to the county detention center where medical care was available. We affirm the denial of qualified immunity on both claims.

McCowan based his excessive-force claim on his assertion that Officer Moralez placed McCowan in the back seat of a patrol car, handcuffed behind his back and unrestrained by a seatbelt, and then drove recklessly to the police station, knowing his driving was violently tossing McCowan back and forth across the backseat. This rough ride, McCowan contends, injured his shoulders, after McCowan had advised the officer before the trip to the station that he had a previous shoulder injury.

As to this claim, it was clearly established at the time of these events that an officer’s gratuitous use of excessive force against a fully compliant, restrained, and non-threatening misdemeanant arrestee is unreasonable—and, therefore, violates the Fourth Amendment. Thus, we agree with the district court that Officer Moralez is not entitled to qualified immunity from McCowan’s excessive-force claim.

McCowan’s second claim alleged that Officer Moralez was deliberately indifferent to McCowan’s serious medical needs—his injured shoulders—by delaying McCowan’s access to medical care until he arrived at the county detention center.² Because these allegations alleged a clearly established violation of the Fourteenth Amendment, we also AFFIRM the district court’s decision to deny Officer Moralez qualified immunity on that claim.

Therefore, having jurisdiction over this appeal under 28 U.S.C. § 1291, see Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), we AFFIRM the district court’s decision in full, and remand this case to the district court for further proceedings consistent with our decision.

I. BACKGROUND

Importantly, the district court denied Officer Moralez qualified immunity at the summary judgment stage of this litigation. For purposes of this interlocutory appeal, then, we must "take as true the facts the district court has determined a reasonable jury could find at trial." Walton v. Powell, 821 F.3d 1204, 1207 (10th Cir. 2016) (citing Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) ). Here, those facts include the following:

At almost midnight on August 21, 2015, Officer Moralez pulled McCowan over for driving without his headlights. "McCowan had red, bloodshot, watery eyes, a flushed face, slurred his words, smelled strongly of alcohol and had a thirty pack of beer in his backseat. [He] admitted he drank three beers one to two hours earlier." (Aplt. App. at 172 (record citations omitted).) McCowan agreed to take a sobriety test but, before doing so, he "informed Officer Morale[z] that he had a pending social security disability claim for a neck and shoulder injury, an injury which disrupted his equilibrium and would thus impair his ability to pass the test." (Id. 173.)

After McCowan "perform[ed] ‘poorly’ on the sobriety test," Officer Moralez arrested him. (Id. )

As he was handcuffed, McCowan claims he requested the cuffs be left "loose" and forward facing so as not to aggravate his shoulder injury, but Officer Morale[z] refused because he suspected McCowan was lying about his injury. McCowan further claims Officer Morale[z] did not check the tightness of the handcuffs, and that he [McCowan] was fully compliant with Officer Morale[z]’ requests.

(Id. (record citations omitted).) It is undisputed "that McCowan was compliant." (Id. )

Once handcuffed, McCowan was placed in the back of Officer Morale[z]’s police car and driven to the Las Cruces Police Department, which took two minutes and covered .8 miles. McCowan asserts he was not buckled in, and as a result of Officer Morale[z]’ fast, jerky driving, was repeatedly slammed throughout the backseat "like a ping pong ball." McCowan begged Officer Morale[z] to slow down, but McCowan claims Officer Morale[z] laughed at him and continued to speed. McCowan believes his being tossed around re-injured his shoulder.

(Id. 173-74 (record citations omitted).)

Once at the police station,

McCowan was placed in a holding cell within the ... Police Department where, consistent with protocol, he was handcuffed to a metal bench. Because of searing shoulder pain, McCowan requested he not be handcuffed. When that request was denied, McCowan pleaded to be handcuffed from the front, which was also denied. ...

Soon thereafter, McCowan was removed from his cell to be breathalyzed. He blew a .08 and .09, just above the legal limit in New Mexico. McCowan was returned to his cell while Officer Morale[z] completed paperwork relating to his arrest. McCowan asserts that he continued to cry and scream in pain, and begged the officers present, including Officer Morale[z], to loosen his handcuffs. According to McCowan, the officers laughed at his request.

At some point ..., Officer Morale[z] entered McCowan’s cell to prepare his transfer to the Dona Ana County Detention Center. According to McCowan, Officer Morale[z] slightly loosened his handcuffs upon discovering McCowan’s wrists were purple. He then ordered McCowan to stand up straight, but McCowan was unable to do so because he was handcuffed and in pain. With the assistance of another officer, McCowan was pulled off the floor, causing his shoulders to audibly tear. McCowan screamed in pain but no medical treatment was offered or provided. McCowan was then taken to the detention center, where he was medically cleared and booked despite telling the booking officer he was in "excruciating pain."

Following his arrest, McCowan had two shoulder surgeries and accumulated nearly $120,000 in medical bills. In February 2016, his DUI and failure to use headlamp charges were dismissed without prejudice.

(Id. 174-75 (record citations, footnote omitted).)³

McCowan sued Officer Moralez and his employer, the City of Las Cruces, asserting claims under both 42 U.S.C. § 1983 and New Mexico law. Officer Moralez moved for summary judgment on the § 1983 claims based on qualified immunity. Relevant here, the district court⁴ denied Officer Moralez qualified immunity on two of McCowan’s § 1983 claims, which alleged that 1) Officer Moralez used excessive force against McCowan by placing him in the back seat of the patrol car, handcuffed but unrestrained by a seatbelt, and then driving recklessly to the police station, knowing McCowan was being tossed about the back seat; and 2) Officer Moralez was deliberately indifferent to McCowan’s serious medical needs—his injured shoulders—by delaying his access to medical care until Officer Moralez transported McCowan to the detention center, where medical care was available. Officer Moralez brings this interlocutory appeal from the district court’s decision denying him qualified immunity on these two claims.⁵

II. STANDARD OF REVIEW

[We] review the denial of a summary judgment motion raising qualified immunity questions de novo. Because of the underlying purposes of qualified immunity, we review summary judgment orders deciding qualified immunity questions differently from other summary judgment decisions. After a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff. Applying the same standards as the district court, we must determine whether the plaintiff has satisfied a heavy two-part burden. The plaintiff must first establish that the defendant’s actions violated a constitutional or statutory right. If the plaintiff establishes a violation of a constitutional or statutory right, he must then demonstrate that the right at issue was clearly established at the time of the defendant’s unlawful conduct. In determining whether the right was "clearly established," the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether the right was sufficiently clear that a reasonable officer would understand that what he is doing violates that right.

Estate of Ceballos v. Husk, 919 F.3d 1204, 1212-13 (10th Cir. 2019) (quoting Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) ). A court can consider the two qualified-immunity inquiries—whether the plaintiff has established a statutory or constitutional violation and whether that violation was clearly established—in any order. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity. If the plaintiff successfully establishes the violation of a clearly established right, the burden shifts to the defendant, who must prove that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. In short, although we review the evidence in the light most

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